Legal Legacy

By Timothy D. Lytton
Boston Globe
February 4, 2007

http://www.boston.com/news/education/higher/articles/2007/02/04/legal_legacy/

[Note from BishopAccountability.org: See also Clergy Sexual Abuse Litigation: The Policymaking Role of Tort Law, by Timothy D. Lytton, Connecticut Law Review (February 2007). This is a 718K file. The article is also available as two smaller files 1 2.]

This year marks the fifth anniversary of The Boston Globe's Pulitzer Prize-winning coverage of clergy sexual abuse. The Pulitzer citation praised the Globe for its "courageous, comprehensive coverage of sexual abuse by priests, an effort that pierced secrecy, stirred local, national, and international reaction and produced changes in the Roman Catholic Church." Yet while the news media have received well-deserved recognition for their part in exposing the abuse and focusing attention on the need for institutional reform, little attention has been paid to the underlying role played by lawsuits. There's an unsung hero in this story: the plaintiff's lawyer.

Although the tort system is more often maligned than celebrated, it was the work of plaintiffs' lawyers that brought the scandal to light in the first place. Pleadings, discovery documents, and depositions in hundreds of cases during the course of more than two decades have provided most of the information underlying media coverage of the scandal. Lawsuits have fed journalists a steady supply of compelling stories of both personal suffering and official wrongdoing, and they have provided a defense against potential libel claims and political cover to criticize powerful church officials.

It was lawsuits that first publicly pointed a finger at church officials and focused attention on the need for institutional reform. Unlike criminal law, with its narrow focus on individual wrongdoing, tort law -- which allows individuals to sue for harm done to them by others -- often looks beyond the immediate cause of an injury to uncover the role of institutional leaders, such as corporate executives, or in this case, bishops, who failed to do what they should have to prevent harm. This is in part because institutional defendants have deeper pockets and are therefore capable of paying damages if they lose. But thanks to tort claims, we now understand that clergy sexual abuse is not only a problem of individual priests who molest children but also of church officials who failed to report abuse and, in some instances, even facilitated it.

The remarkable success of clergy sexual abuse litigation stands out among the many recent attempts to use civil lawsuits to address social problems, most prominently against tobacco companies (aimed at reducing smoking) and against gun-makers (designed to produce stricter gun control). Tobacco and gun litigation have played significant but relatively small roles in larger antismoking and gun-control movements that predated them by decades. And while lawsuits have focused attention on the role of the tobacco and gun industries in contributing to smoking addiction and gun violence, the results in terms of industry reform and government regulation have been modest.

By contrast, clergy sexual abuse litigation has had an especially powerful impact on policy making, drawing attention to the role of church officials and placing the issue on the agendas of church and government policy makers. Tort reform advocates -- pointing to what they call unjustified costs to business and society -- argue that tort litigation is an ineffective and illegitimate way to influence policy making. The story of how lawyers brought clergy sexual abuse to light and prompted the Catholic Church to change its ways suggests otherwise.

Prior to the filing of a 1984 lawsuit against Father Gilbert Gauthe and the Diocese of Lafayette, La., for Gauthe's molestation of dozens of boys over many years, local media reporting of clergy sexual abuse was scant and infrequent and there was no national media coverage of the issue. Prosecutions were rare, public discussion and policy debate nonexistent. In Lafayette, the ongoing litigation drama -- pleadings that named high church officials as defendants, shocking revelations during the discovery process, and tearful trial testimony by an 11-year-old sexual abuse victim -- generated sustained local coverage and attracted regional and national media attention.

Other high profile cases filed across the country over the next two decades involved such notorious pedophiles as James Porter in Fall River, Mass.; Rudolph Kos in Dallas; Oliver O'Grady in Orange County, Calif.; and, of course, John Geoghan in Boston. These cases all led to key policy reforms within the church. Following the Gauthe case in 1984, the National Conference of Catholic Bishops held intensive discussions on the issue in Collegeville, Minn. After the Porter case in 1992, the bishops adopted a nonbinding policy consisting of five principles for addressing allegations. And in the wake of the Geoghan case in 2002, the bishops promulgated a new mandatory national policy -- the Charter for the Protection of Children and Young People -- subsequently approved by the Vatican.

The policy results have been dramatic -- compensation and treatment for victims, removal of proven perpetrators from ministry, training for church personnel in detecting and investigating abuse allegations, and public disclosure of church officials' role in facilitating decades of child sexual abuse. While victim advocates debate the effectiveness of these policies, there can be no doubt that they represent a significant change in the way the church deals with the problem.

Government policy-makers have also been spurred into action. Twenty years of civil litigation and the public outrage it has generated have made it politically safe for local prosecutors and state attorneys general to launch extensive investigations, publish detailed reports on abuse within their jurisdictions and, in some cases, to prosecute perpetrators. In the wake of civil litigation and at the urging of abuse victims and their attorneys, state legislatures have passed laws mandating that clergy members report abuse, imposing new criminal penalties for child endangerment, removing civil damage caps, and extending statutes of limitation for child sexual abuse.

But these lawsuits have done more than merely reform the church. They have also heightened sensitivity to the sexual abuse of children in other contexts. Consider the recent congressional page scandal.

Last September, The New York Times ran a front-page story about Florida Congressman Mark Foley's resignation headlined "Lawmaker Quits Over E-Mail Sent to Teenage Pages." That story ran below the fold. Four days later, another story on the scandal made it to the top of the front page -- only now it was about the failure of House Speaker Dennis Hastert to take action against Foley earlier. That same day, the Times Op-Ed page ran an essay by a former page, now a law professor, outlining institutional reforms for the oversight of the page program. For those who missed the influence of the clergy sexual abuse scandal on the framing of the congressional page scandal, the Sunday Week in Review section printed a cartoon depicting Hastert dressed as a bishop whispering to an aide wearing a Roman collar "We should've just moved Foley to another parish."

The focus on the institutional failures that facilitate child sexual abuse is one of the most important legacies of clergy sexual abuse litigation. As a lawyer for the Los Angeles Archdiocese put it, "now, of course, it's widely understood that organizations do bear responsibility for the criminal misbehavior of members to the extent that it is foreseeable. That's probably a positive thing that came out of all this: That the law, in its wisdom and experience, examined this phenomenon and decided that we need deeper levels of accountability."

If these lawsuits against the Catholic Church have been a resounding success, why have lawsuits against the tobacco and gun industries not fared nearly as well? One reason is simply that allegations of widespread child sexual molestation by compulsive pedophile priests covered up at the highest levels of the church made for an especially scandalous narrative, and one that fueled an unusual level of moral outrage. This is not to belittle the horrific nature of lung cancer and gun violence but only to point out that nothing stokes public indignation quite like a sex scandal -- especially involving minors.

And whereas tobacco and gun litigation have been criticized as attempts to circumvent the legislative process and regulation by government agencies, clergy sexual abuse litigation has helped other regulatory institutions -- the US bishops, law enforcement officials, state legislators -- do their jobs better. Clergy sexual abuse litigation is, in short, a poster child for the policy-making benefits of tort litigation.

The use of civil lawsuits to pursue regulatory policy is of course highly controversial. Tort reform advocates argue that tort litigation is largely frivolous and wasteful and that it produces perverse regulatory outcomes. They allege that rampant litigation and inflated jury awards constitute a major drain on society's resources and that widespread fear of liability leads to the withdrawal of essential products and services and stifles safety innovation. For example, the website of Common Good, a leading tort reform organization, is replete with stories linking increases in childhood obesity to the shortening of recess hours and bans on playing tag by school officials who fear potential liability from playground accidents.

Of course, assessing the regulatory benefits of tort litigation in other contexts requires case-by-case analysis. At the very least, however, the example of clergy sexual abuse litigation -- by prompting reluctant church and government officials to adopt sensible policies to address a widespread social problem -- offers a compelling counterexample to the sweeping claims of tort reform advocates. That's one legacy of the Catholic Church scandal that few might have anticipated.

Timothy D. Lytton is professor of law at Albany Law School and author of the forthcoming "Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse" (Harvard University Press).